Challenging the Government’s CPAR Ratings and Contractor Past Performance Evaluations

Theodore P. Watson, Esq. Knowing CPAR Ratings and rules to challenge them can save thousands of dollars in attorney fees.

The process for challenging your CPARS ratings must be correctly done and through the right channels. You cannot wait until you submit a government bid to then respond to adverse past performance evaluation decisions.  Yet, the actual roadmap for challenging your CPARs performance assessment adjectival ratings still appears to be a mystery.

When it comes to your individual performance contract rating, there are certain things you have to address when you challenge your CPAR ratings at the contracting officer level. Without them, you are almost guaranteed to get no consideration from the contracting agency. CPAR assesses a contractor’s performance and will have a significant impact on your ability to get future contracts.

What is the Contractor Performance Assessment Reporting System (“CPARS”)? 

Federal government agencies use the CPARs program to develop a uniform and accessible method for documenting contractor past performance information. Agency Contracting Officers are ultimately responsible for making sure that this performance gets done correctly and with supportable evidence.

Federal Acquisition Regulation (FAR) Part 42 identifies several requirements for documenting contractor performance evaluations for systems, non-systems, architect-engineer, and construction acquisitions. See CPAR Home Page.

Government procurement regulations also require contracting agencies to document additional contractor performance information in the Federal Awardee Performance and Integrity Information System (FAPIIS), including Terminations for Cause or Default (FAR Part 42), Defective Cost or Pricing Data (FAR Part 42), Information on Trafficking in Persons (FAR Part 22), Determinations of Non-Responsibility (FAR Part 9), Subcontractor Payment Issues (FAR Part 42), Administrative Agreements (FAR Part 9), and DoD Determination of Contractor Fault (Defense Federal Acquisition Regulation Supplement (DFARS) Part 209) and to make the information available in the Past Performance Information Retrieval System (PPIRS). Id.

Can You Challenge or Appeal Your CPARS Ratings?

How You Challenge Government Contractor Reviews is Important 

As a government contractor, you have the right to comment on the actual report, challenge adverse CPAR ratings. A problem arises when the report shows that the agency fails to record both positive and any alleged negative performance for a specific period of time. Instead, the agency only records negative information.

• You first must respond with your disagreements formally in the Contractor Performance Reporting System. Sending emails etc. may not be legally sufficient.
• After you send your response and the final agency CPAR performance assessment report comes out, then the next step is critical.
• When the final CPARS evaluation is done, then you are ready to officially challenge ratings.
• You must submit a claim that meets the requirements of the Contract Disputes Act and ask for a contracting officer’s final decision.

When it comes to responding to or appealing negative contractor past performance ratings from your most recent government contract, there are very few contractors in federal procurement that never had some level of concern or disagreement with contractor Past Performance Information Retrieval System  (PPIRS) or Federal Awardee Performance and Integrity Information System under the Contract Performance Evaluation System (CPARS Evaluations). 

• When challenging your individual performance contract ratings, you must act quickly. Waiting until the Agency gives you a bad score during proposal evaluation may be too late.
• The first thing you want to do is to make sure that your calendar when your CPAR past performance evaluation ratings are due on each government contract. If you do not receive the ratings, then send a message to the contracting officer.
• Realize that you are not always limited to the electronic information block to challenge your ratings. You may be able to upload additional sheets if necessary. If you, simply fax an additional sheet over to the Contracting Officer in addition to the electronic submissions

October 2016 case as actual evidence that the  Contractor Performance Assessment Reporting System CPAR response initially starts the painful problem that can lead all the way to appeal. (Board lacks jurisdiction over contractor’s (i) claim that its due process rights were violated by Government’s failure to permit contractor to review and respond to negative comments in CPAR before it was published and (ii) contractor’s request for injunctive relief or specific performance, but retains jurisdiction over other disputes involving CPAR ratings).

• Knowing how to respond to the contractor comments  after the initial notification is critical
• Understanding how to address each element of the CPARS contractor reviews report can create a record for submitting a claim or appealing the CPARS final decision.
• After the agency final performance assessment evaluation decision, what you do next and how you do it can avoid disastrous mistakes
• Preserving your rights to any CPARS appeal starts at the agency level
• Allowing your Contractor Performance Assessment Report to make its way to PPIRS could be too late.

The U.S. Court of Appeals for the Federal Circuit has made it clear that the federal government has a contractual and legal duty to not hinder your performance or prevent you from obtaining the fruits of your contractual bargain. See Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 820 n.1 (Fed. Cir. 2010); Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005).

• The agency is required to follow its own definitions discussed as CPAR evaluations 
• When unacceptable performance is alleged, the Contracting Officer must be able to produce documentation to substantiate the adverse past performance evaluation.
• Knowing what the FAR application thresholds are for evaluating contractor past performance on federal government contracts plays a vital role in how you appeal the CPARS performance assessment decision.

When your company receives a negative past performance rating report, it can ruin your ability to get future federal contracts. Therefore, effectively challenging the evaluation via your CPARS contractor comments must be immediately addressed.

• Many companies that attempt this process might be unaware of the serious legal implications of not properly addressing the factual mistakes made by the government and addressing the relevant procurement law that has been violated.

The Federal Acquisition Regulation (FAR) mandates that contractor performance information be collected (FAR Part 42.15) and used in source selection evaluations (FAR Part 15). Companies are often misguided on how to formally challenge contractor performance evaluations. As a result, they spend thousands of dollars only to find out they did not follow the correct process.

Courts have struggled with how to deal with contract performance situations where contractors seek court intervention with contractor performance assessment and CPAR reporting. However, both the Boards of Contract Appeals and the U.S. Court of Federal Claims agree that contractor past performance challenges can fall within the purview of the Contract Disputes Act (CDA).

Once the agency assessing official enters her final decision over the contractor’s dispute, the past performance evaluation will then enter into its final resting place called PPIRS, the Past Performance Information Retrieval System.

CONTRACTOR COMMENTS 

The first step when responding to CPARS ratings is keeping in mind that the key is to effectively consider the factual and legal reasons why the evaluation scores were unwarranted.

When initiating CPARS contract comments, another important consideration for past performance ratings and evaluation reviews is to provide a lengthy detailed and factual basis for your disagreement in your response. If you have to add more pages, then advise the contracting officer accordingly.

Government contractors should point to a lack of decisions based on objective facts, and inaccuracies between positive and negative in the record; it is also crucial to have documentation throughout the performance period supporting your disagreement. Understanding Liquidated Damages Construction Government Contracts.

INITIATING THE PAST PERFORMANCE & CPAR PERFORMANCE ASSESSMENT CLAIM APPEAL PROCESS

 Once the contractor CPARS evaluation are completed by the agency, government contractors should initiate a CPAR claim with the Contracting Officer under the Contract Disputes Act.

• Failure to follow this step will prove disastrous for any appeal filed either at the Board of Contracts Appeal or U.S Court of Federal Claims. Contract Disputes Act COFC & Boards Appellate Jurisdiction
• Challenging the government’s contractor past performance evaluation is legally considered a dispute relating to the contract under the CDA.

Your CPAR ratings contract dispute claim should not simply reflect a disagreement with the government.

• The contractor’s past performance evaluation must be complete in order to start the claims or appeal process.
• The CDA claim should be specific and detailed enough to allow the contracting officer to make a reasonable determination.
• You must receive a contracting officer’s final decision before looking to appeal to the Board or Court of Federal Claims.

Tip: When submitting a Contract Disputes Act claim in response to negative ratings, the claim should obvious that there is a dispute. Courts do not like to have to rely upon inferences. At least tell the government that you disagree and demand that the adverse rating (s) be permanently withdrawn. See VANQUISH WORLDWIDE, LLC v. U.S.

• If you have to scramble and compile emails or documents to prove that you have met the Contract Disputes Act requirement for CPARs ratings, chances are that you have already lost your case
• The government has no problem on appeal asking the court to dismiss your case
• Communication that contemplates further dialogue with the government does not amount to a Claim for corrected past performance ratings

What Are Remedies for Poor Contractor Past Performance Ratings?

When you find out that the agency has given you a poor contractor past performance rating, you must act immediately. You want to first initiate the process by submitting a Contract Disputes Act claim requesting CO to change the report and provide detailed explanations and justification for why the changes should be made. This is not an easy process simply because drafting a claim under the Contract Disputes Act is not as simple as many would believe.

• You want to go through the CPARs process before submitting a claim to change poor performance ratings
• Providing detailed and supporting documentation is critical 

When looking for remedies for poor contractor performance ratings one must understand that a Court or Board of Contract Appeals can only make a finding that the record does not support the ratings. The judge cannot direct the contracting officer on what changes to make.  The only remaining remedies would be to explain any poor performance ratings when submitting each bid for a new government project.

CPARS RATINGS AND PAST PERFORMANCE APPEAL PROCESS 

After the Contracting Officer issues a final decision denying your claim to change CPARs ratings the disputes process now gives the appellate court, Court of Federal Claims, subject matter jurisdiction to hear your complaint. You want to address the issue before your performance evaluation record goes into PPIRS. See also Government Contract Disputes Act Statute of Limitations for Government Contract Claims.

When considering the CPAR appeal process, companies should be aware that there are numerous contractor CPARS performance assessment appeal cases that were dismissed simply because the contractor did not follow the required process. This cannot only be a waste of valuable effort, but also a substantial waste of time and legal fees. See information about evaluating subcontractor past performance.

For additional help preparing a Contract Disputes Act claims challenging the government’s CPAR past performance evaluation report and CPAR ratings,  and to avoid costly legal mistakes, call our government contracts lawyers at 1-866-601-5518.